It will be interesting to see which Dems join the Republican bandwagon for Peter Kiing's bill to prohibit DOJ from using its counterterrorism fund monies to try these cases in federal criminal court. If enough of them do, them maybe they've talked to Obama who has told them it's okay for them to support King's bill. If the bill passes, he can veto it. If it survives a veto, he can move to stage 2, which is not military commission trials, but trials under the Military Code of Justice. Surely he must have the power to order that without congressional approval.
Civil libertarians have said all along these defendants must be tried by either a federal criminal court or under the code of military justice.
I doubt the military prosecutors will be as experienced in trying terror cases as the federal criminal prosecutors in New York, and maybe they'll lose one or two of the cases, but that ought to show the right wing how they shot themselves in the foot.
Obama cannot backtrack now to military commissions with respect to detainees he believes can be prosecuted and convicted in federal court. He will not only be a one term President, he very well may face a major primary fight for re-nomination to his second term. Capitulating on this will throw millions of American over the edge, and he'll be in the land of no return.
We all understand that he told us change isn't easy and it takes time. Moving backwards is not change at all, it's regression -- a retreat to the Bush/Cheney policies we elected him to break from. If he capitulates on this now, he's not the man we elected. It will be one broken promise too many. His legacy will be a joke.
The Constitution acknowledges two kinds of courts: Article III courts (our civil and criminal courts) and military courts that proceed under the Uniform Code of Military Justice. Military commissions are not military courts. Obama is on weak ground with these military commissions and indefinite detention, just as Bush was, and the Supreme Court will again weigh in if he goes that route -- probably not in his favor.
Personally, I still believe Obama will keep these defendants in federal criminal courts, although perhaps decide to try them somewhere other than NYC. If I'm wrong, I think it will be because the funding limitation bill passes despite his veto. And if that happens, trials under the code of military justice are the next best option. If he reverts to military commissions instead, I'll realize he fooled me not once, but twice, and I'm done.
